Couple Asks Ninth Circuit to Rule on Gay-Marriage Ban

Just days after the Justice Department filed an appeal of a ruling declaring the federal ban on gay marriage unconstitutional, lawyers for a same-sex couple at the center of a bankruptcy dispute upped the ante by asking the Ninth U.S. Circuit Court of Appeals to take the case.

The Justice Department appealed the bankruptcy-court ruling Monday that declared the Defense of Marriage Act as unconstitutional. Such appeals of bankruptcy-court decisions would be heard by the U.S. District Court.

But lawyers for the couple involved in the bankruptcy case are seeking to skip that step and go right to appeals court.

“Because no ruling by the district court can establish the authoritative guidance—one way or the other—that judges, practitioners, debtors, creditors and interested parties need on this important issue, the debtors seek certification of this appeal directly to the Ninth Circuit,” according to papers filed by the couple’s lawyers.

A decision by the appeals court to take the case could put the issue of gay marriage on track for a hearing by the Supreme Court in 2012, an election year.

The case involves a gay male couple in California who filed for joint bankruptcy protection as a married couple. The Obama administration says it believes DOMA violates the Constitution, and reports earlier this year indicated the Justice Department would stop defending the law in court.

Still, the U.S. trustee’s office, an arm of Justice Department that oversees bankruptcy cases, asked the court to dismiss the case, claiming the Obama administration has ordered them to defend the law until a final court determination the law or Congress repeals it. The trustee said the DOMA barred the court from recognizing the couple’s marriage.

U.S. Bankruptcy Court Judge Thomas B. Donovan disagreed, however, ruling earlier this month that DOMA violated the equal-protection rights of Gene Balas and Carlos Morales under the due process clause of the Fifth Amendment. In an unusual step, another 19 federal bankruptcy judges signed on to the ruling.

DOMA was passed in 1996 by large majorities in both houses of Congress and signed by President Bill Clinton. The law says the federal government will only recognize marriages that are between one man and one woman. Its goals, according to congressional proponents, include “encouraging responsible procreation and child-bearing,” “defending and nurturing traditional heterosexual marriage,” “defending traditional notions of morality,” and “preserving scarce resources.”

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